Case 1:23-cv-00758-JLH Document 61 Filed 05/14/24 Page 1 of 5 PageID #: 1566
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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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`C.A. No. 23-758 (JLH) (SRF)
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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. 59)
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Rodger D. Smith II (#3778)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`rsmith@morrisnichols.com
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`Attorneys for Plaintiff Orca Security Ltd.
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`OF COUNSEL:
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`Douglas E. Lumish
`Lucas Lonergan
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025
`(650) 328-4600
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`Blake R. Davis
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`(415) 391-0600
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`Kristina D. McKenna
`LATHAM & WATKINS LLP
`200 Clarendon Street
`Boston, MA 02116
`(617) 948-6000
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`May 14, 2024
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`Case 1:23-cv-00758-JLH Document 61 Filed 05/14/24 Page 2 of 5 PageID #: 1567
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`Dear Judge Fallon:
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`Plaintiff Orca Security Ltd. writes in response to Defendant Wiz, Inc.’s discovery
`teleconference letter (D.I. 59). Wiz does not identify any affirmative issues for the Court to
`address. Indeed, whereas Wiz originally claimed the parties were at an impasse relating to Orca’s
`production of source code for its patent-practicing Orca Platform, that issue is moot. D.I. 59 at 1.
`As Wiz demanded, Orca produced its complete source code for all versions of the patent practicing
`product, including Git history, for Wiz to inspect. Thus, the only remaining issue related to source
`code is Wiz’s refusal to produce for inspection the same scope of source code that it demanded
`from Orca. As explained in Orca’s May 13 Teleconference Letter, the Court should reject Wiz’s
`source code double standard and compel Wiz to make available for inspection the complete source
`code for all versions of the Accused Product, including Git history, like Orca has already done.
`See D.I. 58 (Orca’s Teleconference Letter dated May 13, 2024, hereinafter “Orca’s Letter”) at 3-
`4.
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`Having no issues to raise regarding Orca’s discovery, Wiz instead uses its letter to argue
`the Court should deny Orca’s request for the Court to set an interim deadline for Wiz’s document
`productions. The Court should reject those arguments. As explained in Orca’s Letter (D.I. 58 at
`3-4), setting a date for Wiz’s initial production of documents from its most relevant ESI sources is
`necessary to curb Wiz’s discovery delays, permit timely follow-on discovery, and provide Orca
`with a full and fair ability to prepare its case. Wiz claims the issue of setting dates certain for its
`document productions is “not ripe” for four reasons. Each is wrong.
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`First, Wiz argues Orca did not “meaningfully meet and confer” on interim deadlines for
`Wiz’s document productions. D.I. 59 at 1. Not so. Beginning on March 29, Orca requested that
`Wiz “produce at least the scope of responsive documents it has agreed to for these requests no later
`than April 4, 2024.” Ex. A at 1. The parties discussed that timeline during the April 4 verbal meet
`and confer, but Wiz rejected it and would only agree to “provide its position, in writing by April
`8, on the scope of discovery it would agree to for the 61 RFPs for which it had responded that it
`would be willing to ‘meet and confer’ on.” D.I. 58, Ex. C at 2 (emphasis added). But April 8 came
`and went, and Wiz still failed to “provide its position on the 60+ RFPs and 4 interrogatories.” Id.,
`Ex. D at 15. In response to more prodding from Orca, id., on April 11, Wiz agreed to supplement
`its RFP responses by April 15 but was silent on (a) whether any documents would accompany
`those responses, and (b) when it would provide interrogatory responses. Id. at 12. Orca explained
`that if Wiz was not going to begin producing documents and substantively responding to
`interrogatories by April 15 (or at a minimum provide Orca a date when it would begin), Orca would
`be forced to “ask for the Court’s guidance regarding deadlines for document production.” Id. at
`11. Wiz responded only that “[t]here is no reason to ‘seek the Court’s guidance regarding
`deadlines for document production’ when the Court has already set a substantial completion
`deadline of November 1, 2024.” Id. at 10-11. The parties again discussed a timeline for Wiz’s
`document production and interrogatory responses during an April 12 verbal meet and confer. Id.
`at 9. Once again, Wiz “refused to commit to any dates certain for its productions because it does
`not see any urgency or need to produce documents absent express Court deadlines.” Id. On April
`16, Orca again asked Wiz to “provide a date certain by which you will produce responsive
`documents” and “supplemental interrogatory responses” to the non-contention interrogatories. Id.
`at 7-8. Wiz responded that it would “begin rolling productions within the month” without
`providing any date certain, insisting that no “deadlines [] necessitate sooner productions.” Id. at
`7. Orca again attempted to obtain dates for Wiz’s productions during the April 18 verbal meet and
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`Case 1:23-cv-00758-JLH Document 61 Filed 05/14/24 Page 3 of 5 PageID #: 1568
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`The Honorable Sherry R. Fallon
`May 14, 2024
`Page 2
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`confer, but “Wiz refused to address it” or provide any “basis for its failure to produce any
`additional documents.” Id. at 4. The issue arose once more during yet another meet and confer
`on April 23. This time, Wiz finally identified a date certain to begin producing documents—May
`10, the date Orca’s initial infringement contentions were due—but “did not provide any basis for
`waiting until that date,” over Orca’s repeated requests for earlier productions. Id. at 2.
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`Wiz’s letter does not address any of the parties’ correspondence from March 29 to April
`23. Instead, Wiz block quotes an email it sent on April 24 in response to Orca’s motion requesting
`a conference with the Court, where Wiz raised a smattering of questions relating to Wiz’s
`document productions that had allegedly “never” been discussed. D.I. 59 at 1-2. But framing
`Wiz’s questions as having “never” been discussed as if that were somehow Orca’s doing is
`perplexing; Wiz never raised its questions during any of the parties’ four meet and confers. Wiz
`then faults Orca for requesting a teleconference prior to responding to Wiz’s belated April 24
`questions as if those questions had ever been asked before. And in all events, Orca diligently
`attempted to address Wiz’s questions prior to filing its May 13 Letter with the Court.
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`Leaving all this aside, as Wiz notes, Orca sent Wiz a proposed ESI protocol on April 30
`that included interim deadlines for prior outstanding discovery and future custodial and electronic
`correspondence productions.1 D.I. 59-3; see also D.I. 59-4 at 2 (noting that the ESI order did not
`“moot” the pending issue of interim deadlines). Orca asked Wiz repeatedly for its positions
`concerning those interim deadlines, which Wiz refused to provide. See D.I. 59-2 at 1; D.I. 59-4 at
`2. On May 9, the parties verbally met and conferred yet again, and Wiz was again unwilling to
`discuss any interim deadlines. As of this letter, Wiz has refused to provide any edits or
`counterproposals to Orca’s proposed deadlines, or the scope of what Wiz should produce and
`when.
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`In sum, Wiz’s contention that there needs to be more meeting and conferring on when it
`will produce its belated documents rings hollow. Having now met and conferred five times on that
`now, Orca asks the Court to set the interim May 24 deadline for initial document productions in
`Orca’s Proposed Order and put an end to Wiz’s filibustering.
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`Second, Wiz alleges that interim deadlines are not necessary because Wiz has repeatedly
`said it “would begin rolling document productions in due course” and the existing deadline for the
`substantial completion of documents is not until November 1. See D.I. 59 at 2-3. Wiz misses the
`point. The issue is not whether Wiz will produce documents, but when. As explained in Orca’s
`Letter, Wiz spent the first three months of discovery doing as little as it could, producing only
`three customer-facing documents and a one-page financial summary on the April 5 deadline for
`core technical documents. D.I. 58 at 1-2. While Wiz produced a second set of documents on May
`10, even that production is entirely deficient as it does not include internal documents from Wiz’s
`“most relevant” ESI sources. Id. at 1, n.1. Indeed, Wiz admits in its letter that the May 10
`document production is not “complete,” and promises only that more documents will come in the
`future at some indeterminate time of its choosing. D.I. 59 at 3; see generally id. (stating Wiz will
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`1 Orca’s Letter only addresses an interim deadline for document productions responsive to the
`parties’ first set of requests for production that have been the subject of extensive meet and confers.
`The parties continue to discuss deadlines for mutual exchanges of electronic correspondence
`discovery.
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`Case 1:23-cv-00758-JLH Document 61 Filed 05/14/24 Page 4 of 5 PageID #: 1569
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`The Honorable Sherry R. Fallon
`May 14, 2024
`Page 3
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`“begin rolling productions in due course” and productions will be made “in a reasonable time
`frame”). Wiz’s refusal to provide dates certain, and its repeated references to the Court’s
`substantial completion deadline, suggests that Wiz intends to withhold many of its documents until
`the end of the discovery period. There is no legitimate basis for such stalling, and this approach,
`if permitted to continue, would prejudice Orca which needs these documents now to adequately
`prepare its case and determine what additional discovery is needed.
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`Third, Wiz tries to justify its failure to engage in discovery because Orca has not identified
`any specific “deadlines before which Orca urgently needed to review Wiz’s documents.” D.I. 59
`at 3. That is not the law. The Federal Rules of Civil Procedure obligate Wiz to produce documents
`and respond to interrogatories in a timely fashion, and does not permit a party to withhold
`discovery until the requesting party proves it is “urgently needed.” See Fed. R. Civ. P. 1, 2, 33,
`34. Orca served its first set of requests for production and interrogatories months ago, and there
`is no excuse for Wiz’s repeated failures to have properly produce its documents and answer the
`interrogatories. Moreover, discovery is an iterative process that involves cycles of requests,
`responses, and document productions refined with follow-on discovery of more targeted requests
`and particular documents produced, ultimately leading to the substantial completion deadline.
`Integral Dev. Corp v. Tolat, No. C 12-06575 JSW (LB), 2013 WL 5120682, at *2 (N.D. Cal. Sept.
`13, 2013) (“iterative discovery means that the parties can start with productions that illuminate the
`fact lay of the land, and then they can fashion more targeted requests”); Taylor v. Armor Corr.
`Health Servs., Inc., No. 120CV01406WJMNYW, 2020 WL 13850266, at *2 (D. Colo. Nov. 19,
`2020) (“discovery is, by necessity, an iterative process”). Wiz’s refusal to provide fulsome
`discovery has obstructed this iterative process and should be rejected.2
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`Fourth, Wiz argues that adding an interim deadline for document productions is an
`“attempt to amend the Scheduling Order” that requires “good cause.” D.I. 59 at 2 n.1. Not so.
`Orca does not seek to amend any existing deadlines in the scheduling order, but rather to compel
`production of documents responsive to the parties’ initial requests for production. Wiz provides
`no authority for its novel proposition that ordering a party to produce documents constitutes an
`amendment to the scheduling order, and Orca is not aware of any. To the contrary, courts in this
`District regularly compel the production of documents by specific dates without addressing “good
`cause” factors for amending a schedule. See, e.g., Goddard Sys., Inc. v. Gondal, No. CV 17-1003-
`CJB, 2018 WL 5919742, at *1 (D. Del. Nov. 9, 2018); Finjan, Inc. v. Rapid7, Inc., No. CV 18-
`1519-MN, 2020 WL 5045186, at *3 (D. Del. Aug. 7, 2020); Commonwealth Ins. Co. of Am. v.
`Colony N. Apartments, No. CV 11-1019-SLR-CJB, 2013 WL 12506986, at *2 (D. Del. July 24,
`2013).
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`In sum, Orca’s request for dates certain by which Wiz must produce documents responsive
`to Orca’s initial Requests for Production (Nos. 1-83) is necessary here to curb further delays and
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`2 Wiz’s pattern of delay appears to be recurring with Wiz’s responses to Orca’s second set of RFPs.
`As with its responses to Orca’s First Set of RFPs discussed in Orca’s Letter (D.I. 58 at 1), Wiz
`responded to Orca’s Second Set of RFPs (Nos. 84-90) on April 29 with boilerplate objections and
`a statement that “Defendant is willing to confer” for each Request. The parties met and conferred
`on those requests on May 9, where Wiz stated it would later provide its position whether it would
`produce documents responsive to those requests. Thus far, Wiz has yet to agree to produce any
`documents.
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`Case 1:23-cv-00758-JLH Document 61 Filed 05/14/24 Page 5 of 5 PageID #: 1570
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`The Honorable Sherry R. Fallon
`May 14, 2024
`Page 4
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`allow for necessary follow on discovery. Wiz should not be permitted to withhold documents and
`information responsive to that discovery only to later provide a dump of discovery on the deadline
`for substantial completion. Accordingly, Orca asks the Court to enter Orca’s proposed order, or
`order other dates certain for Wiz’s compliance as the Court sees fit.
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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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`Enclosure
`cc:
`All Counsel of Record (via electronic mail)
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