Case 1:23-cv-00758-JLH Document 30-1 Filed 02/21/24 Page 1 of 3 PageID #: 1217
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`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
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`302 658 9200
`302 658 3989 FAX
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`RODGER D. SMITH II
`302 351 9205
`rsmith@mnat.com
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`February 21, 2024
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`VIA ELECTRONIC FILING
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`The Honorable Jennifer L. Hall
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
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`Dear Judge Hall:
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`Re: Orca Security Ltd. v. Wiz, Inc., C.A. No. 23-758 (JLH)
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`Pursuant to the Court’s January 22, 2024 Order, Plaintiff Orca Security Ltd. and Defendant
`Wiz, Inc. jointly submit this letter and the attached proposed Scheduling Order. The parties met
`and conferred on February 14, 2024 but were unable to agree on a proposed schedule. The parties’
`positions regarding the disputed schedule are detailed below.
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`Plaintiff’s Position – Further Delay in the Case Schedule is Unwarranted
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`The parties’ dispute with respect to the schedule largely centers on whether the deadlines
`in the case should begin after the Court enters its Scheduling Order (as Orca proposes), or whether
`the parties should delay four months to proceed until after Wiz’s non-dispositive motion to dismiss
`is decided (as Wiz proposes).
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`Orca’s proposal follows the Court’s model scheduling order. Per the Court’s model, Orca
`proposes exchanging Rule 26(a)(1) disclosures five (5) days from the Court’s Order, an application
`for a protective order ten (10) days from the Court’s Order, and a deadline for Plaintiff to identify
`the Accused Products on March 8, 2024, leading to trial in approximately December 2025.
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`During the parties’ meet and confer, Wiz did not identify any problems with the dates Orca
`proposed, or contend that there were any unique issues in this case that would preclude the parties
`from meeting Orca’s proposed schedule. Indeed, aside from the first event date, Wiz proposes the
`same timing Orca proposes between subsequent events, with minor variations to account for
`deadlines falling on weekends and holidays (e.g., both schedules propose a 12-month window
`between the deadline for Plaintiff’s identification of accused products through the close of fact
`discovery). Wiz’s proposal thus acknowledges the reasonableness of Orca’s proposal.
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`Wiz’s proposal, in contrast, is little more than a renewed request to stay this case for four
`months until its non-dispositive motion to dismiss is resolved and the pleadings are closed. That
`argument mirrors the same argument the Court already rejected in ordering the parties to move
`forward with submitting a scheduling order. Compare D.I. 26 (Wiz arguing that the entrance of a
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`Case 1:23-cv-00758-JLH Document 30-1 Filed 02/21/24 Page 2 of 3 PageID #: 1218
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`The Honorable Jennifer L. Hall
`February 21, 2024
`Page 2
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`scheduling order should be delayed while “the universe of claims by both parties remains
`unknown” because of its pending motion to dismiss); with D.I. 27 (ordering the parties to jointly
`submit a proposed Scheduling Order within thirty days). As was the case then, there is no reason
`to further delay this case—pending since July 2023—based on a non-dispositive motion that, even
`in the unlikely event it were granted with prejudice, would not stop Orca’s direct infringement
`claims from moving forward. See D.I. 25. Courts in this District often enter a scheduling order and
`permit discovery to proceed while motions to dismiss are pending and the pleadings have not
`closed. See id. (collecting cases). Defendant identifies no reason for the Court to depart from that
`practice. On the contrary, within two hours of the parties’ Rule 26 conference, Defendant served
`Plaintiff with discovery requests, including sixty requests for production. By Defendant’s own
`actions, this case is ready to move forward now in line with Orca’s proposed schedule.
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`Wiz’s only other argument for its delayed schedule is a suggestion that it “may” bring
`counterclaims against Orca. During the parties’ meet and confer, Orca asked Wiz to elaborate on
`what counterclaims it envisioned so Orca could consider their impact on the case schedule. But
`Wiz refused to provide any substantive information as to what the counterclaims might entail.
`Wiz’s refusal to elaborate warrants rejection of its schedule based on the alleged specter of possible
`but unidentified counterclaims. Indeed, the mere possibility of counterclaims exists in every case
`and would dictate that case schedules would never be entered until the pleadings close. That
`approach has been rejected in this District, and Orca respectfully requests that it be rejected here.
`See D.I. 25 (collecting cases); D.I. 27 (ordering Parties to enter a proposed schedule). Wiz’s four-
`month delay is therefore unwarranted and Orca’s schedule should be entered.1
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`Defendant’s Position – The Schedule Should Properly Account for Counterclaims and
`Defendant’s Pending Motion to Dismiss
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`Wiz’s proposal is not a disguised attempt to stay proceedings. Rather, it is the only
`proposal that properly accounts for Wiz’s potential counterclaims and Wiz’s motion to dismiss
`Orca’s willful infringement claims. And the difference in proposed schedules assumes a ruling on
`the motion to dismiss and counterclaims being filed in the next couple of months. This is a lawsuit
`between two competing operating companies in the cybersecurity space. While Wiz has not yet
`asserted counterclaims since its motion to dismiss is pending and will not give Orca a preview of
`said claims before they are asserted, it currently intends to assert counterclaims against Orca. Of
`course, until claims are actually asserted those claims are “potential”, but Wiz will not prejudice
`itself by outlining such claims to Orca before there are plead. Thus, only Wiz’s proposal would
`obviate the need for a later application for amendment of the scheduling order under Rule 16(b)(4),
`while Orca’s proposal would in all likelihood require such an application.
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`First, Wiz made its intention to potentially file counterclaims clear to Orca during the
`Parties’ meet and confer. Contrary to Orca’s assertion, Wiz is not required to outline what the
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`Wiz’s proposals to delay exchanging initial disclosures until after the pleadings are closed
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`and to delay submitting a protective order are similarly unwarranted. Rule 26(e) already requires
`the parties to update their initial disclosures when necessary in view of later arising “additional or
`corrective” information.
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`Case 1:23-cv-00758-JLH Document 30-1 Filed 02/21/24 Page 3 of 3 PageID #: 1219
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`The Honorable Jennifer L. Hall
`February 21, 2024
`Page 3
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`specific counterclaims are to justify its proposed schedule. The mere fact that Wiz currently
`intends to assert counterclaims is enough to have a tangible impact on the case schedule.
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`Second, as Wiz has previously made clear, it makes practical sense to schedule case
`deadlines after Wiz’s dispositive motion has been decided because, if granted, the universe of
`claims will be significantly altered. Accordingly, Wiz’s proposed schedule will prevent needless
`expenditure of the Parties’ and Court’s resources, while Orca’s proposal will result in unnecessary
`work and expense. Wiz understands this Court’s Order to prepare a proposed Scheduling Order
`as just that—a requirement to prepare a proposed Scheduling Order, not a decision regarding when
`the Schedule should begin or what the specific deadlines should be. D.I. 27 (ordering Parties to
`enter a proposed schedule and outline the Parties’ positions regarding any disputes but taking no
`position on when deadlines should be set).
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`Finally, as Orca acknowledges, Wiz already served discovery on Orca after the parties’
`meet and confer under Rules 16 and 26. With discovery open and proceeding, there is no basis to
`argue that Wiz is seeking a “stay” of the litigation, but instead proposes a schedule that properly
`accounts for the circumstances of this case, while Orca’s proposed schedule does not.
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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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`Clerk of Court (via hand delivery)
`All Counsel of Record (via electronic mail)
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`cc:
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