Case 1:23-cv-00758-JLH-SRF Document 230 Filed 01/13/25 Page 1 of 8 PageID #:
`6046
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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 and
`Counterclaim-Defendant,
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`v.
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`WIZ, INC.
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`Defendant and
`Counterclaim-Plaintiff.
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` C.A. No. 23-758-JLH-SRF
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`JOINT LETTER TO THE HONORABLE SHERRY R. FALLON
`REGARDING WIZ’S REQUEST FOR STAY PENDING INTER PARTES REVIEW
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`Frederick L. Cottrell, III (#2555)
`Kelly E. Farnan (#4395)
`Christine D. Haynes (#4697)
`One Rodney Square
`920 North King Street
`Wilmington, DE 19801
`(302) 651-7700
`cottrell@rlf.com
`farnan@rlf.com
`haynes@rlf.com
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`Attorneys for Defendant and Counterclaim-
`Plaintiff Wiz, Inc
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`
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`Dated: January 13, 2025
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`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
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`Attorneys for Plaintiff and Counterclaim-
`Defendant Orca Security Ltd.
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`Case 1:23-cv-00758-JLH-SRF Document 230 Filed 01/13/25 Page 2 of 8 PageID #:
`6047
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`Honorable Sherry R. Fallon
`January 13, 2025
`Page 1
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`Dear Judge Fallon:
`Pursuant to the Court’s December 17, 2024 and January 7, 2025 Orders (D.I. 223, 229),
`Defendant Wiz, Inc. (“Wiz”) and Plaintiff Orca Security Ltd. (“Orca”) jointly submit this letter
`regarding Wiz’s motion to stay this case pending inter partes review (“IPR”) of Orca’s asserted
`patents. Wiz’s and Orca’s proposed forms of stay are attached as Exhibits A and B. See also D.I.
`228-1, 228-2. A redline showing differences between the two, with Wiz’s proposal (Ex. A) as the
`original and Orca’s proposal (Ex. B) as the revised, is attached as Exhibit C. See also D.I. 228-3.
`WIZ’S POSITION:
`Orca alleges that Wiz infringes six patents: U.S. Patent Nos. 11,663,031, 11,663,032,
`11,693,685, 11,726,809, 11,740,926, and 11,775,326 (collectively, the “Orca Asserted Patents”).
`See D.I. 218. All six patents are related: they are all in the same patent family and claim priority
`to the same parent application. Id.; D.I. 15-1 at Exs. 1-2, 7-9, 14. All six IPRs rely on the same
`primary prior art reference. D.I. 218. Wiz has filed IPRs for all asserted claims in each Orca
`Asserted Patent. Id. (citing D.I. 80, 110, 126). On December 9, 2024, the Patent Trial and Appeal
`Board (“PTAB”) instituted the first three IPRs, which target the ’031, ’032, and ’685 Orca asserted
`patents. Id. The statutory deadline for final written decisions on these three IPRs is December 9,
`2025. Id. The remaining three IPRs have institution deadlines of January 20, 2025, February 17,
`2025, and February 19, 2025. Id. Trial in this case is set for March 2, 2026. D.I. 90.
`I. The Parties Agree the Case Should be Stayed But Disagree on Two Aspects of its Form
`Both sides agree that a stay is appropriate. In fact, Orca has been acting as if a stay is
`already in place.1 See Ex. F. The parties have met and conferred extensively on the proposed form
`of stay, but disagree in two respects.
`First, Orca seeks to allow either party to amend the pleadings to assert new claims during
`the pendency of the stay. During the parties’ meet and confer, Orca stated it would agree to a stay
`pending the resolution of Wiz’s IPRs on the condition that the statute of limitations be tolled for
`unknown claims. Ex. D at 7. When asked what claims it wanted tolled, Orca answered “I don’t
`know.” Id. Orca’s initial proposal for a stipulated stay included a paragraph that stated as follows:
`“Any and all statutes of limitations, whether arising by contract, statute, common law or otherwise,
`that relate to claims either party has or may have against the other and which could otherwise be
`brought in this action but for the stay are tolled for the duration of the stay.” Ex. E at 3. Wiz
`reiterated it would not agree to include this paragraph. Ex. D at 6.
`Wiz cannot and is not required to agree to toll unknown claims to stay this case pending
`IPRs. Wiz asked Orca to identify authority requiring such a tolling provision in the context of a
`stay here. Id. Orca could cite none (and still cannot), relying instead on an inapplicable civil rights
`action. Id. at 5 (citing Ramirez v. Cnty. of Nassau, 345 F.R.D. 397 (E.D.N.Y. 2024)). Ramirez
`addressed equitable tolling as a matter of law with no stipulation tolling claims. As Wiz explained,
`if equitable tolling applies as a matter of law during a stay, Orca is free to argue as such without
`an express tolling provision. At bottom, either Orca knows what claims it wants tolled and is
`refusing to tell the Court and Wiz; or it truly does not know what claims it wants tolled, in which
`
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`1 Orca claims that Wiz is delaying and withholding discovery. That is not true. Wiz continues to
`fulfill its discovery obligations and made a 60,674-page production on the January 8, 2025
`deadline for substantial completion. D.I. 90; Ex. G. Orca produced nothing that day. Ex. F.
`Further, Wiz’s ESI production remains subject to the parties’ ongoing search term negotiations.
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`1
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`Case 1:23-cv-00758-JLH-SRF Document 230 Filed 01/13/25 Page 3 of 8 PageID #:
`6048
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`Honorable Sherry R. Fallon
`January 13, 2025
`Page 2
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`case it is unclear how any statute of limitations issue could arise, subject to standard law on inquiry
`notice. Wiz explained exactly this in correspondence, with no real response from Orca. Id. at 4.
` Orca then pivoted to its current proposal, which it characterizes as a “compromise” on the
`tolling provision it earlier sought. Id. at 1. Orca’s current proposal allows the parties “to amend
`the pleadings to assert new causes of action” during the stay. Ex. B at 2; Ex. D at 1. It is unclear
`how Orca’s proposed stay would work—e.g., whether a party would need to answer, move to
`dismiss, or otherwise respond to newly added claims during the stay, and whether the case would
`actually be stayed, if so. Ex. D at 2. All Orca has stated is that a party could amend to add claims
`and those claims and any response would be stayed. But Wiz cannot and should not agree to the
`addition of unknown claims followed by no ability to challenge or respond to them. Orca has
`pointed to no other stay pending IPR that contains such a provision. Other stays by this Court
`regularly do not contain such a provision. See, e.g., Sandvik Mining & Constr. USA LLC v. CMS
`Cepcor Ltd., No. 24-00481-JLH, D.I. 14 (D. Del. Oct. 10, 2024); Cleveland Med. Devices Inc. v.
`ResMed Inc., No. 22-00794-JLH, D.I. 300 (D. Del. June 21, 2024); Samsung Elecs. Co., Ltd. v.
`Netlist, Inc., No. 21-01453-JLH, D.I. 183 (D. Del. Oct. 10, 2023); Cargill, Inc. v. Vantage
`Specialty Chems., Inc., No. 22-00979-JLH, D.I. 107 (D. Del. Oct. 5, 2023); RideShare Displays,
`Inc. v. Lyft, Inc., No. 20-01629-JLH, D.I. 103 (D. Del. Apr. 18, 2022). The Court should order a
`stay without Orca’s proposal to add claims during a stay. If Orca identifies claims to assert, it is
`able to move to lift the stay to assert them then.
`The second dispute is that Orca seeks to temporarily stay the case for a few weeks, then lift
`the stay if institution is denied on any of Wiz’s remaining IPRs in January or February. Ex. B at
`2-3. Wiz would then have to move again to stay the case, potentially resulting in the case stopping,
`restarting, then stopping again. Orca’s proposal to stop, start, and stop the case would hinder, not
`promote, judicial and party efficiency. What deadlines would apply under the scheduling order
`during this interregnum? How would lapsed deadlines be treated? Orca’s proposal contains no
`answers. Wiz is not aware of any similar stays, and Orca has provided no examples of any.
`Wiz’s proposal is that the case be stayed now. A stay is appropriate for the reasons set out
`by Wiz, and is not premature. If any of the remaining IPRs on the related patents are not instituted,
`the parties will meet and confer and Orca can ask to lift the stay. This keeps the case stayed until
`these questions are resolved. This is a commonsense proposal and Wiz compromised to reach
`agreement on this issue, as both sides are effectively calculating that all six IPRs will be instituted.
`But Wiz cannot agree to Orca’s “stop/start” proposal. The case should be stayed, and Orca is free
`to move to lift the stay under the parties’ agreed procedure.
`Even if less than all six IPRs are instituted, the three currently instituted IPRs alone would
`justify a stay of the entire case in view of overlapping claim construction, infringement, invalidity,
`and damages issues for Orca’s asserted patents. See Brit. Telecomms. PLC v. IAC/Interactivecorp.,
`C.A. No. 18-366, 2019 WL 4740156, at *8 (D. Del. Sept. 27, 2019) (“even if the PTAB does not
`invalidate any of the claims in the pending IPR proceeding, the Court will benefit from the PTAB’s
`guidance on the construction of certain claim terms”). As explained above, all six Orca asserted
`patents are related and stem from the same priority application. See Antares Pharma, Inc. v. Medac
`Pharma Inc., 771 F.3d 1354, 1358 (Fed. Cir. 2014) (“A continuation application is ‘a second
`application for the same invention claimed in a prior nonprovisional application’”) (quoting MPEP
`§ 201.07 (9th ed. Mar. 2014)). The same primary prior art reference is at issue in each IPR. And,
`there are several important claim terms that will be addressed in the already-pending IPRs, like
`“snapshot” and “analyzing a snapshot.” D.I. 222 at 4-8; D.I. 202 at 6-34, 64-70. These terms are
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`Case 1:23-cv-00758-JLH-SRF Document 230 Filed 01/13/25 Page 4 of 8 PageID #:
`6049
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`Honorable Sherry R. Fallon
`January 13, 2025
`Page 3
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`present in all asserted claims of all six patents, and would inform the Court’s claim construction
`in this case—no matter what happens in the three remaining IPR decisions. Aylus Networks, Inc.
`v. Apple Inc., 856 F.3d 1353, 1360 (Fed. Cir. 2017) (applying “prosecution disclaimer doctrine to
`IPR proceedings will ensure that claims are not argued one way in order to maintain their
`patentability and in a different way against accused infringers”); Infinity Comput. Prods., Inc. v.
`Oki Data Ams., Inc., 987 F.3d 1053, 1059 (Fed. Cir. 2021); Personalized Media Commc’ns, LLC
`v. Apple Inc., 952 F.3d 1336, 1345 (Fed. Cir. 2020).
`Courts routinely grant stays of the entire case in similar situations. See, e.g., IOENGINE,
`LLC v. PayPal Holdings, Inc., C.A. No. 18-452-WCB, 2019 WL 3943058, at *9 (D. Del. Aug. 21,
`2019) (collecting cases granting stays where IPRs were instituted on a subset of asserted claims);
`Virentem Ventures, LLC v. YouTube, LLC, No. 18-00917-MN, D.I. 218 (D. Del. Mar. 6, 2020)
`(staying case through PTAB’s final written decision); ACQIS, LLC v. EMC Corp., 109 F. Supp.
`3d 352, 357-58 (D. Mass. 2015) (granting stay where IPRs were instituted on 2 of 11 asserted
`patents and 3 of 22 asserted claims, given the “significant overlap among the patents-in-suit” and
`potential “need for certain portions of discovery and motion practice to be redone after the
`completion of the IPRs” otherwise). To be clear, Wiz is confident that all IPRs will be instituted,
`whereupon both parties agree the entire case should be stayed. But if they are not, a stay of the
`entire case (including as to Wiz’s counterclaims) is still appropriate. And, Orca is free to move to
`lift the stay under the parties’ agreed procedure. See, e.g., DermaFocus LLC v. Ulthera, Inc., C.A.
`No. 15-654, 2018 WL 2733363, at *1 (D. Del. June 7, 2018).
`The case should be stayed in its entirety, as set forth in Wiz’s proposal. Ex. A.
`II. A Stay Pending IPRs is Appropriate
`Even though both sides are proposing a stay, for completeness, Wiz lays out here why a
`stay pending IPRs is appropriate in this case. See Int’l Bus. Machs. Corp. v. Rakuten, Inc., 680 F.
`Supp. 3d 531, 534 (D. Del. 2023) (enumerating factors considered in motions to stay pending
`IPRs); see also Toshiba Samsung Storage Tech. Korea Corp. v. LG Elecs., Inc., 193 F. Supp. 3d
`345, 348 (D. Del. 2016). First, as discussed above, a stay would simplify the issues for trial. All
`six patents are related and stem from the same priority application; the same primary prior art
`reference is at issue in each IPR; and several important claim terms are at issue in the IPRs and
`this litigation. Second, the early stage of this case favors a stay. Orca’s motion to dismiss remains
`pending. D.I. 137, 166. Fact discovery is set to close on May 13, 2025, and no depositions have
`been noticed or taken. D.I. 90. Expert discovery is set to close on August 5, 2025, summary
`judgment motions are to be heard on November 7, 2025, and trial is set for March 2, 2026. Id. A
`stay is likely to conserve significant judicial and party resources. Third, Orca will not be unduly
`prejudiced by a stay. Orca agrees, since both parties are proposing a stay. Wiz expeditiously filed
`its IPRs; Wiz provided notice that it would seek a stay less than a week after institution of the first
`three IPRs; three of the six IPRs have already been instituted and the remaining three are likely to
`be instituted within the next month; and Orca and Wiz are just two of many competitors in a
`crowded cybersecurity market. See RetailMeNot, Inc. v. Honey Sci. LLC, C.A. No. 18-937, 2020
`WL 373341, at *8 (D. Del. Jan. 23, 2020) (finding “existence of direct competition . . . not
`dispositive of whether to institute a stay” and recommending grant of stay where parties were “two
`of several competitors” rather than competitors “in a two-entity market”); Nexans Inc. v. Belden
`Inc., C.A. No. 12-1491-SLR-SRF, 2014 WL 651913, at *3 (D. Del. Feb. 19, 2014), report and
`recommendation adopted, 2014 WL 1232218, at *1 (D. Del. Mar. 12, 2014) (“The presence of
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`Case 1:23-cv-00758-JLH-SRF Document 230 Filed 01/13/25 Page 5 of 8 PageID #:
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`Honorable Sherry R. Fallon
`January 13, 2025
`Page 4
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`multiple active firms in the relevant market, however, may decrease the likelihood of such harm
`befalling the patentee.”). In sum, and as Orca agrees, a stay is appropriate.
`ORCA’S POSITION:
`The parties do not dispute the propriety of a stay at this stage, only its form. Orca’s proposal
`should be adopted because it would (1) keep the burden on Wiz to show that a stay is appropriate
`if one or more of its IPRs are denied institution and (2) allow the parties to amend the pleadings to
`assert additional claims, minimizes prejudice and preserves party and Court resources.
`Orca asserts that Wiz infringes six of Orca’s patents, and Wiz petitioned for IPR of those
`patents in phases. On December 9, 2024, the PTAB instituted half of Wiz’s IPRs—for the ’031,
`’032, and ’685 patents—and days later Wiz submitted a letter to the Court stating it intended to
`move for a stay of the entire case. Wiz’s request for a stay was and is premature: IPR decisions on
`the remaining three patents are expected to issue by February 19, 2025, and the Court and the
`parties will benefit from having all such decisions before determining how this case should
`proceed.
`Importantly, the PTAB’s institution of IPR on three of Wiz’s six petitions does not mean
`Wiz’s remaining IPR petitions for the ’809, ’926, and ’326 patents will be instituted. Wiz argued
`in its letter to the Court that each of the remaining IPRs are based on the same primary reference
`(see D.I. 218 at 1), but omitted that each petition relies only on obviousness and asserts different
`secondary references from the instituted IPRs. Deficiencies in these distinct obviousness grounds
`provide independent reasons for the PTAB to deny institution of IPR on the ’809, ’926, and ’326
`patents, as Orca’s preliminary responses in those IPRs explained. If the PTAB denies institution
`on any of Wiz’s petitions, the Court’s evaluation of the stay factors will necessarily be different—
`indeed, the factors may weigh against a stay entirely. See, e.g., Toshiba Samsung Storage Tech.
`Korea Corp. v. LG Elecs., Inc., 193 F. Supp. 3d 345, 349 (D. Del. 2016) (denying stay in part
`because “the PTAB could at most invalidate 50% of t[he] claims” so any PTAB decision would
`“leave behind a lot to (at least potentially) be litigated here”); Courtesy Prods., LLC v. Hamilton
`Beach Brands, Inc., C.A. No. 13-2012, 2015 WL 5145526, at *2 (D. Del. Sept. 1, 2015) (denying
`stay where PTAB would not resolve all pending claims); 10X Genomics, Inc. v. Parse Biosciences,
`Inc., C.A. No. 22-1117, slip op. at 2 (D. Del. Feb. 20, 2024) (same). That is particularly true here
`where Orca and Wiz are direct competitors. Davol, Inc. v. Atrium Med. Corp., C.A. No. 12-958,
`2013 WL 3013343, at *3, 6 (D. Del. June 17, 2013) (explaining litigation between direct
`competitors weighs against stay).
`Even though Wiz’s request for a stay was premature, Orca proposed a form for a stipulated
`stay that would account for the facts that half of Wiz’s IPRs have been instituted and decisions for
`the remaining three IPRs will issue by mid-February. Wiz has generally agreed to Orca’s proposal,
`including staying all deadlines pending institution of the remaining IPRs and that the stay will
`automatically continue through final written decisions if all IPRs are instituted.2 See D.I. 228-1
`
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`2 Wiz implies Orca improperly treated the stay as being already in place while the Court rules on
`the parties’ stay motion (see supra at n.1), but that was the parties’ express agreement filed with
`the Court on January 6: “the parties have agreed to toll discovery obligations, which does not
`impact this Court’s current Rule 16 Order, pending a ruling on this Stipulation and [Proposed]
`Order.” D.I. 228-3 at 2. As agreed, Orca complied with its discovery obligations due before
`January 6. In contrast, Wiz is improperly withholding ~30,000 unobjected-to documents
`responsive to Orca’s non-priority ESI requests that Wiz agreed it would produce on December 10.
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`Case 1:23-cv-00758-JLH-SRF Document 230 Filed 01/13/25 Page 6 of 8 PageID #:
`6051
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`Honorable Sherry R. Fallon
`January 13, 2025
`Page 5
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`(Wiz’s proposal), D.I. 228-2 (Orca’s proposal), D.I. 228-3 (redline between Wiz’s and Orca’s
`proposals). As shown in D.I. 228-3, the parties’ proposals differ in just two respects, one in
`paragraph 2 and one in paragraph 4. Orca respectfully requests that the Court adopt its proposal to
`prevent a stay from unfairly prejudicing Orca and improperly tactically advantaging Wiz.
`Paragraph 2: The parties dispute how to treat the stay if one or more of Wiz’s IPRs is not
`instituted. Wiz’s proposal would improperly shift the burden of proof of showing the propriety of
`a stay to Orca. The disputed portion of paragraph 2 with the parties’ respective proposals is below:
`Orca’s proposal
`Wiz’s proposal
`“This case is stayed as to all claims asserted by
`“This case is stayed as to all claims asserted by
`either party through final written decision in
`either party through final written decision in
`each of the Wiz IPRs, except as provided in
`each of the Wiz IPRs, except as provided in
`paragraph 3 below.”
`paragraph 3 below.”
`The parties do not dispute the language of Paragraph 3, referenced in Orca’s proposal,
`which governs what happens if Wiz’s remaining IPRs are not instituted. Paragraph 3 states “[i]f
`institution is denied in one or more of Wiz’s petitions for IPRs of the ’809, ’926, and ’326 patents,”
`then the parties would confer and file a joint status report with their proposal(s) for how to proceed.
`Under Orca’s proposal, the proposed stay would continue automatically through final
`written decisions only if all of Wiz’s IPRs are instituted (because paragraph 3 would no longer
`apply), but the stay would not automatically continue if one or more remaining IPRs are not
`instituted (because the exception of paragraph 3 applies). Orca’s proposal correctly reflects that
`Wiz, as the party seeking a stay, at all times bears the burden of persuading the Court that a stay
`is appropriate. See Monolithic Power Sys., Inc. v. Reed Semiconductor Corp., C.A. No. 23-1155,
`D.I. 146, slip op. at 1–2 (D. Del. Oct. 21, 2024) (“We look to the movant to make a persuasive
`case for a stay.”).
`Wiz refuses to agree to Orca’s proposed paragraph 2 because Wiz wants the case stayed
`regardless of whether some or all of the remaining IPRs are denied. Under Wiz’s proposal, the
`stay would automatically continue through final written decisions no matter what happens with
`the remaining IPRs, and it would be Orca’s burden to show that the stay should be lifted. Wiz’s
`attempt to shift the burden to Orca is improper. Wiz also argues that Orca’s paragraph 2 would
`result in a “start/stop proposal” where unknown deadlines would “restart” if Wiz’s IPRs are denied
`and the paragraph 3 exception applies. Wiz is wrong. Orca’s proposal does not alter paragraph 1
`of the stay that, under both parties’ proposals, vacates the Scheduling Order and “all outstanding
`deadlines.” Orca’s proposal does not restart any of the vacated deadlines; it simply (and correctly)
`keeps the burden on the moving party (Wiz) to show that a stay is justified. See Monolithic Power,
`D.I. 146 at 1–2. Orca respectfully requests that the Court adopt Orca’s proposal for paragraph 2 as
`set forth in D.I. 228-2.
`Paragraph 4: The second dispute is in paragraph 4 of the stipulation, which relates to
`Wiz’s attempt to unfairly leverage its IPR decisions to prejudice Orca’s ability to file new claims
`against Wiz. The parties’ respective proposals are set forth below:
`Orca’s proposal
`Wiz’s proposal
`“Pending further order of this Court, all
` “Pending further order of this Court, all
`discovery obligations are stayed, and no party
`discovery obligations are stayed, and no party
`shall take any action the sole purpose of which
`shall take any action the sole purpose of which
`is to advance this litigation other than (i) to
`is to advance this litigation other than (i) to
`amend the pleadings to assert new causes of
`amend the pleadings to assert new causes of
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`Case 1:23-cv-00758-JLH-SRF Document 230 Filed 01/13/25 Page 7 of 8 PageID #:
`6052
`
`Honorable Sherry R. Fallon
`January 13, 2025
`Page 6
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`action, (ii) moving to lift the stay, or (iii) in
`relation to the IPR proceedings…”
`
`action, (ii) moving to lift the stay, or (iii) in
`relation to the IPR proceedings and/or moving
`to lift the stay…”
`Orca’s proposal allows either party, notwithstanding the stay, “to amend [its] pleadings to
`assert new causes of action.” Any newly added claims will not create any additional work for the
`other party or the Court during the stay because both parties agree that, for the duration of the stay,
`the case is “stayed as to all claims asserted by either party.” See D.I. 228-2 ¶ 2. In other words,
`new causes of action would be treated the same as Wiz’s five pending counterclaims.
`Orca’s proposal is important to prevent Wiz’s request for a stay from causing Orca yet
`more undue prejudice by preserving Orca’s ability to bring additional claims. Wiz produced
`documents in this case that may give rise to additional causes of action, but those documents are
`subject to the Protective Order that states “DESIGNATED MATERIAL shall be used by the
`Parties only in the litigation of this Action” and not in other litigation. D.I. 38 ¶ 7. Since Orca must
`bring additional claims based on those documents in this case, Wiz should not be able to leverage
`a delay it caused by, for example, arguing that statutes of limitations have run on Orca’s claims
`while the case was stayed. See, e.g., British Tellcommc’ns PLC v. IAC/InterActive Corp., C.A. No.
`18-366-WCB, 2019 WL 4740156, at *2 (D. Del. Sept. 27, 2019) (explaining that in determining
`whether to grant a stay, a court considers whether the non-moving party would suffer undue
`prejudice or the moving party would gain a clear tactical advantage).
`This tactical advantage is why Wiz refuses to agree to Orca’s proposal for paragraph 4.
`Orca proposed its version of paragraph 4 as a compromise after Wiz deleted a separate clause in
`Orca’s original proposed form of the stay that would have tolled, for both parties, the statutes of
`limitations for civil claims that could have otherwise been brought in this case. See Ex. D at 6
`(2024-12-26 email from Orca’s counsel proposing initial form of stay); Ex. E (Orca’s initial
`proposal for a stay) ¶ 5 (providing that “[a]ny and all statutes of limitations, whether arising by
`contract, statute, common law or otherwise, that relate to claims either party has or may have
`against the other and which could otherwise be brought in this action but for the stay are tolled for
`the duration of the stay”); see also, e.g., Ramirez v. Cnty. of Nassau, 345 F.R.D. 397, 404
`(E.D.N.Y. 2024) (“Where parties are ordered or agree by stipulation to suspend proceedings during
`the pendency of legal proceedings, the time during which a party is prevented from obtaining legal
`relief is not counted for purposes of statutes of limitations.”).
`Absent Wiz’s agreement to toll relevant statutes of limitations as Orca originally proposed,
`it would be prejudicial to also preclude a mechanism for the parties to assert new claims. Wiz
`requested the stay and that it begin now, including to delay ongoing discovery such as Wiz’s
`substantial completion of the document productions that Orca has been pursuing for months. Wiz’s
`past and future productions include confidential and AEO information subject to the Protective
`Order that may pertain to additional causes of action. Orca should not be precluded from asserting
`such new claims notwithstanding the stay because the deadline to amend pleadings has not passed,
`nor should Orca be required to litigate tolling or notice issues after the stay is lifted should it assert
`new claims, as Wiz’s arguments indicate would be necessary. Orca’s simple compromise will save
`both the parties and the Court time and resources later on, obviating the need to weigh new claims
`against the risk of additional motion practice and potential dismissal on a procedural technicality
`that never would have arisen but for Wiz’s request for a stay. Orca respectfully requests the Court
`adopt Orca’s proposal for paragraph 4 in D.I. 228-2.
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`6053
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`Honorable Sherry R. Fallon
`January 13, 2025
`Page 7
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`Respectfully,
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`/s/ Christine D. Haynes
`Frederick L. Cottrell, III (#2555)
`Kelly E. Farnan (#4395)
`Christine D. Haynes (#4697)
`RICHARDS, LAYTON & FINGER, P.A.
`One Rodney Square
`920 North King Street
`Wilmington, DE 19801
`(302) 651-7700
`cottrell@rlf.com
`farnan@rlf.com
`haynes@rlf.com
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`Attorneys for Defendant and Counterclaim-
`Plaintiff Wiz, Inc
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`/s/ Cameron P. Clark
`Jack B. Blumenfeld (#1014)
`Rodger D. Smith II (#3778)
`Cameron P. Clark (#6647)
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`rsmith@morrisnichols.com
`cclark@morrisnichols.com
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`Attorneys for Plaintiff and Counterclaim-
`Defendant Orca Security Ltd.
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`7
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